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TMI Blog1991 (9) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... d label Exhibit 'K' to the plaint or any other mark or label deceptively similar to the plaintiffs' trade marks or labels so as to pass off or enable others to pass off the defendants' goods as and for the goods of the plaintiffs, By prayer (c) of the plaint, the plaintiffs have sought a permanent injunction restraining the defendants from infringing the 1st plaintiffs copyright in the defendant's original artistic work being Exhibit 'F' to the plaint under No. A-34773/81 or using the impugned label, a specimen of which is annexed as Exhibit 'K' to the plaint, in respect of any goods offered for sale or exposed for sale without the plaintiffs' licence. The plaintiffs have also prayed for a money decree for damages alleged to have been suffered by the plaintiffs as a result of the alleged infringement and for other consequential reliefs. 3. The plaintiffs have taken out Notice of Motion No. 1905 of 1989 for grant of interim injunctions in the terms set out therein. The defendants Nos. 1 and 2 have opposed the notice, of motion inter alia on ground of lack of jurisdiction of this Court, The defendants 1 and 2 have pointed out that no leave w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the 1st and 2nd defendants in Bombay. The 3rd defendant through their learned counsel have conceded that the 3rd defendant was never appointed stockist or dealer to stock and sell the goods manufactured by the 1st and 2nd defendants in Bombay. Admittedly, no agreement was entered into between defendant No. 3 and defendant Nos. 1 and 2 at any time in this behalf or otherwise. No correspondence is produced. No invoices are produced. It is not the case of defendant No. 3 that defendant No. 3 purchased any goods from defendant No. 1. No books of accounts of defendant No. 3 are available. The defendant No. 3 had never put up any board on its shop indicating that the defendants Nos. 1 and 2 had appointed the defendant No. 3 as their dealers or stockist. I accept the averments made in the affidavit dated 2nd Sept., 1989 in this behalf. 8. It is averred in paragraph 18 of the plaint that during the pendency of investigation of criminal complaint filed by the plaintiffs, it was discovered as under:-- It turned out during the investigation that the 3rd defendants are the stockists of the products manufactured by the 1st and 2nd defendants in respect of which the impugned la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndhi, in addition to his own, stating therein that the said Santosh Shukla is carrying on business as a commercial photographer and is not concerned with trade of automobile accessories. Mr. Chitnis, the learned counsel for Santosh Shukla, contends that Mr. Santosh Shukla should not be compelled to answer any question of the Court as he is accused of having committed a criminal offence. Report of C.I.D., Bombay (Exhibit 4 to the affidavit in reply dated 2nd Sept., 1989) supports the case of defendants Nos. 1 and 2. In my judgment, the plaintiffs have invoked the jurisdiction of this Court against a Calcutta party and the onus is entirely on the plaintiffs to prove the averments. The plaintiffs have failed to prove the averments made and it shall have to be held that neither defendant No. 3 nor Santosh Shukla had any dealings with defendants Nos. 1 and 2 in respect of the goods in question. 10. The plaintiffs have averred in paragraphs 29 and 30 of the plaint that the entire cause of action has arisen at Bombay. The plaintiffs have averred that the goods of the plaintiffs are commercially available in Bombay. The plaintiffs want me to construe affidavit in reply to the effect tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 14 of the Letters Patent can be entertained by the Court at any stage and it is now tendered to the Court for grant of such leave at the conclusion of the arguments by the learned counsel for the plaintiffs. However, I am not prepared to exercise jurisdiction in respect of the alleged cause of action for breach of the alleged copyright is concerned at this stage unless the petition for grant of leave under Clause 14 of the Letters Patent is first disposed of. In view of the conduct of the plaintiffs in making incorrect averments in respect of the alleged jurisdiction of this Court on the alleged cause of action for infringement of trade mark or passing off, I am inclined to dismiss the notice of motion with costs coupled with the grant of liberty to the plaintiffs to take out a fresh notice of motion if leave under Clause 14 of the Letters Patent is granted for such reliefs as may be available to the plaintiffs in law, if any. No more discussion is required on this aspect. 12. I shall now turn to the authorities cited by the learned counsel at the bar on the interesting question of jurisdiction which was argued before me in respect of the cause of action for alleged infring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abad in the case of Khestrapal, Sharma v. Pancham Singh Varma, AIR 1915 All 262. 16. Mr. Daruwala has also rightly relied upon the judgment of the High Court of Madras in the case of Amrutanjan Ltd. v. Mehta Unani Pharmacy Co., (Civil Suit No. 54 of 1970 decided by Varadarajan, J. on 30th March 1976) and also the judgment dated 18th July 1989 delivered by Srinivasan, J. in the case of Brooke Bond India Ltd. v. Balaji Tea (India) Ltd. The judgment in the case of Brooke Bond India Ltd. is of additional significance in this case. In this case, the plaintiff had filed a suit for alleged infringement of trade mark, passing off and copyright against a party carrying on business in Madhya Pradesh. The said suit was filed in the High Court of Madras. It was held by the Court that such joinder of causes of action was an abuse of the process of law. The High Court of Madras refused to grant interim injunctions as sought for by the plaintiffs even though the High Court had jurisdiction to entertain the suit under the Copyright Act, 1957 and the three causes of action could be combined with the leave of the Court under Clause 14 of the Letters Patent. It was held by the Court that it was en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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